Criminal Appeal No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MTWARA AT MTWARA CRIMINAL APPEAL NO. 11259 OF 2024 (Originating from the District Court of Tandahimba at Tandahimba, in Criminal Case No. 12/2023) KANGOMBA RASHIDI MOHAMEDI................................... APPELLANT VERSUS THE REPUBLIC.............................................................RESPONDENT JUDGMENT 2(J' June, 2024 & 18h July, 2024 MPAZE, J.: On the night of 25th January, 2023 Inspector Tito Mathew Kigwile (PW1), accompanied by nine fellow officers in Chingungwe Village for patrol and search, spotted Kangomba Rashidi Mohamedi, the appellant, riding a motorcycle with Registration No. MC 344 CTD while carrying four sacks. They stopped him. After stopping, they searched the contents of the sacks and found cannabis sativa. They placed him under arrest and took him to Tandahimba Police Station. On 6th February, 2023 the appellant was taken to Tandahimba District Court for the offence of trafficking in narcotic 1 drugs contrary to Section 15A(1) and (2)(b) of the Drugs Control and Enforcement Act [No. 95 of 2019]. The particulars of the offence, which were read and explained to the accused person, alleged that on the night of 25th January, 2023 at Chingungwe village within Tandahimba District in Mtwara Region, Kangomba Rashidi Mohamedi unlawfully trafficked four sacks of cannabis sativa weighing 49.64 kg, commonly known as "bhangi", from Masasi to Mtwara Town using a motorcycle with Registration No. MC 344 CTD, Chassis No. LC6PCJK24L0099142, Engine No. 156FM-5ABD2F83859, made by HAOJLIE, red in colour. The accused pleaded not guilty to the offence, which led to the case proceeding to a full trial. In a bid to prove their case, the prosecution paraded four witnesses. Through the testimony of these four witnesses, the trial court found that the accused had a case to answer. He was allowed to make a defence, during which he defended himself without bringing any witnesses. Following both sides closing their case, the trial court was satisfied with the evidence adduced by the prosecution and determined that it sufficiently proved the charge against the appellant beyond a reasonable doubt. Consequently, the appellant was found guilty, convicted, and sentenced to 20 years imprisonment. 2 The sentence and conviction deeply upset him, prompting him to appeal to this court. His appeal is based on seven grounds, summarized as follows; 1. The prosecution did not prove its case beyond a reasonable doubt. 2. The chain of custody (Exhibit P5) of the seized drugs was not completely maintained, and there is no explanation from PW3 on the movement of the exhibit. 3. The certificate of seizure (Exhibit P3) indicating the appellant's unlawful possession of the alleged narcotic drugs was wrongly maintained and admitted. 4. Exhibit P7 (Government Analyst Report) was improperly tendered by an incompetent witness (PW3) who had no material knowledge of the content of the document. 5. The trial Magistrate misdirected himself in holding that the caution statement (Exhibit P4) and Extra Judicial Statement (Exhibit PIO) were procured per the law, while in fact, they were illegally recorded and procedurally admitted in evidence. 6. The trial court failed to properly examine, evaluate, and analyze the evidence on record. 7. How the proceedings at the trial were conducted was irregular or improper. 3 Based on these grounds of appeal, he prayed this court to quash and set aside the sentence imposed on him. During the appeal hearing, the appellant appeared in person, whereas Ms. Florence Mbamba, the learned State Attorney, represented the Republic. In arguing the appeal, the appellant was brief he urged the court to consider his grounds of appeal as presented, emphasizing the absence of a crucial witness who is the government chemist it cannot be said the case was proved beyond a reasonable doubt. He insisted that this court set aside the conviction and sentence of the trial court. On her part, the State Attorney supported the appeal on the following basis; Starting with grounds 2, 3, and 5, the State Attorney agreed with the complaints in those grounds, stating that it was true that the procedure for the admission of the exhibits, which include the chain of custody, the certificate of seizure, and the caution statement, was not followed. She stated that before these exhibits were admitted, no foundation was laid, nor were they identified or cleared before tendering. The State Attorney noted that not only were these exhibits improperly admitted, but they were also read first before being admitted. She added that other exhibits, including the four sacks suspected to 4 contain cannabis sativa, the government analyst report, the submission form, and a letter requesting the analysis to be conducted, were also admitted without following the proper procedure. The only exhibit which the State Attorney said was admitted according to the procedure is the Extra Judicial Statement. However, despite pointing out these flaws, she did not explain the consequences of not following the procedure for admitting these exhibits. Continuing to support grounds 1, 4, and 7 of the appeal, the State Attorney agreed that the prosecution failed to prove the case beyond a reasonable doubt as they failed to prove possession and establish a chain of custody. The evidence is silent about whether the certificate was filled out after the arrest, and it does not show to whom PW1, the arresting officer, handed the four sacks after seizing them. She stated that no oral account could confirm the chain of custody. Additionally, she argued that the government chemist, a crucial witness in such cases, did not appear in court to confirm whether the substance contained in the four sacks was cannabis sativa. Due to these defects, the State Attorney insisted that under these circumstances, it cannot be said that the prosecution proved their case beyond a reasonable doubt. 5 However, Ms. Florence did not support ground six of the appeal, where the appellant faulted the trial court for failing to examine, evaluate, and analyze the evidence. In her view, the trial court thoroughly analyzed and examined the evidence. Nevertheless, in her conclusion, she stated that she supports the appeal. In his rejoinder, the appellant merely insisted that the court consider his grounds of appeal and allow the appeal. Upon examining the submissions from both sides and the grounds of appeal, I have found that all seven grounds of appeal can be boiled down to a complaint that; 1. The prosecution failed to prove the charge against the appellant beyond a reasonable doubt. 2. The trial court failed to evaluate and analyze the evidence on record to reach a proper conclusion. Beginning with the first complaint, determining whether a charge has been proved beyond a reasonable doubt requires examining the evidence presented in court, whether it be oral, documentary, or physical evidence. In these circumstances, it is unavoidable to link the oral evidence provided with the exhibits tendered to see if the charge was proved beyond a reasonable doubt. 6 In the case of Msanif Ramadhan Msanif v. DPP (Criminal Appeal No. 454 of 2019), published on the website www.tanzlii.org [2022] TZCA 371, the Court of Appeal had this to say; 'Proof of a charge requires the production oforal, documentary, and physical evidence. In that accord, we cannot avoid linking our discussion on the two grounds with the discussion on the concern raised suo motu by the court regarding the admission of exhibit PE2.' Guided by what has been underscored in this case and the case at hand, it can be noted that the appellant complains about how the exhibits were admitted in court without following the proper procedure for admitting those exhibits. The exhibits complained about here are the Certificate of Seizure (Exhibit P3), Chain of Custody (Exhibit P5), Caution Statement (Exhibit P4), Government Analyst Report (Exhibit P7), and Extra Judicial Statement (Exhibit PIO). Supporting this complaint, Ms. Florence Mbamba, the State Attorney, stated that all these exhibits were admitted without laying any foundation or clearing them before being tendered and admitted as exhibits. 7 The legal stance is that before any exhibit is tendered and admitted in court to form part of the evidence, the witness who wants to tender it must lay a foundation and clear the said exhibit before it is admitted. By laying the foundation and clearing the exhibit, it makes the witness not only appear competent to tender that exhibit but also shows that the witness has knowledge of it and can explain it. Even if asked questions during cross-examination about the exhibit, the witness can answer them. If the exhibit has passed through many hands, the witness can demonstrate how it has not been tampered with. In the case of Christian Uqbechi v. R, (Criminal Appeal No. 274 of 2019), published on website www.tanzlii.org [2020] TZCA 3539, the Court of Appeal affirmed that; ' The law is settled that the test of tendering an exhibit is whether the witness has the knowledge and possessed the thing in question at some point in time...' In the case of Deus Josias Kilala @ Deo v. R, (Criminal Appeal No. 191 of 2018), published on website www.tanzlii.org [2020] TZCA 1809, the Court of Appeal stated; 'It is also a settled position that a witness is said to have laid a proper foundation of his competence to tender an exhibit upon 8 establishing his familiarity and ability to identify the item in question.' Having comprehended the legal requirements and procedures for admitting exhibits, the pivotal question arises; whether the trial court adhered to these procedures. The trial court records will be essential in assessing this. Starting with PW1, apart from tendering the certificate of seizure, he also tendered four sacks suspected to contain cannabis sativa. In his testimony, when he wanted to tender these exhibits, he did not lay any foundation nor did he clear the exhibits before praying to tender them. His brief testimony stated; '... we stopped him. When we stopped him, we inspected those four sacks and found bhangi stored in them. He also admitted to carrying bhangi. Immediately, we put him under arrest and sent him to the Tandahimba police station together with his motorcycle and (4) sacks with which cannabis sativa was kept. These are four sacks with which we found the accused person carrying them on his motorcycle and certificate of seizure; we pray to tender them.' ACC: No objection COURT: The motorcycle, four bags of cannabis sativa, and certificate of seizure were shown to both this court and the accused 9 person, inspected, and read over. Later on, they were received and admitted as exhibits Pl, P2, and P3 respectively. Sgn SRM 9/2/2023 Glancing at what transpired in the excerpt above, PW1, being the arresting officer, nowhere explains that after arresting the accused and finding those four sacks suspected to contain cannabis sativa, he filled out the certificate of seizure. Nor did he explain what items would be seen on the certificate that he seized on the day he filled out that certificate of seizure and who witnessed and signed that certificate of seizure. Not only that, PW1 failed to state whether, at the time of the arrest and filling out the certificate of seizure, there was any independent witness who witnessed the arrest and signed the certificate of seizure, nor did he state if the accused also signed. By established legal principles, the signing of a certificate of seizure is crucial as it attests that the property was indeed seized from the accused. Failure to clear this fact before admitting exhibits into evidence can raise doubts as to whether the alleged sacks were truly found in the possession of the accused. 10 Looking at what transpired in the record, no foundation was laid before the prayer of tendering the exhibits was made, nor were the exhibits cleared or identified before being tendered and admitted as exhibits. Additionally, PW1 did not explain where he stored these four sacks after arresting the appellant. I would expect that since he was the one who took the appellant to the police station with the four sacks suspected to contain cannabis sativa, he would explain, before praying the said sacks to be admitted, whom he handed them over to at the police station, and any marks he placed on them during the handover, but he did not mention any of this before asking for the sacks to be admitted. PW2's testimony is about taking the caution statement of the appellant. PW3's testimony is about taking the four sacks of cannabis sativa to the government chemist and then returning them to WP Napenda for storage. WP Napenda never appeared in court to give her testimony. Therefore, until the four sacks of cannabis sativa were produced in court, it is unknown where they came from. Furthermore, looking at the order given by the trial magistrate to receive the exhibit, it is evident that the certificate of seizure was read before being admitted if at all it was read. In part of that order, the trial 11 magistrate said, '...inspected, read over. Later on, they are received... 'This was not correct. The proper procedure is that after laying the foundation and the exhibit is cleared, the witness will then pray for the said exhibit to be admitted. Before being admitted, the accused will be allowed to object if any. If there is an objection, it will be recorded, and the prosecution will reply, then the accused will make a rejoinder if any. After that, the court will decide to admit or reject the exhibit. If there is no objection and the court is satisfied that the exhibit has passed the test of admissibility, it will admit that exhibit and mark it. Following the admission of the exhibit, if it is a documentary exhibit, the contents of that exhibit will be read and explained to the accused person and the court, but in the case at hand this was not complied with. It is clear that this procedure was not followed not only for the exhibits referred to above, which were tendered by PW1, but also for all the remaining exhibits; Exhibit P4 (Caution Statement), Exhibit P5 (Chain of Custody), Exhibit P6 (Sample Notification), Exhibit P7 (Government Analyst Report), Exhibit P8 (Letter Requesting Analysis), Exhibit P9 (Submission Form) and Extra Judicial Statement (Exhibit PIO), all fall into the same chain of flaws. 12 Given that these exhibits did not follow the proper admission procedure, Exhibits Pl, P2, P3, P4, P5, P6, P7, P8, P9 and PIO are all expunged from the records. After these exhibits are expunged from the records, especially Exhibit Pl, which is the basis of this charge, even if I were to continue to determine the issue of whether the trial court examined, analysed, and evaluated the evidence, it would be a futile exercise, as the remaining evidence cannot sufficiently prove the guilt of the appellant. In light of the discussion above, I hereby set aside the conviction and sentence imposed on the appellant in the offence for which he was charged at the Trial Court in Criminal Case No. 12 of 2023 of Tandahimba District Court and order him to be released immediately from custody unless lawfully held for another cause. It is so ordered Dated at Mtwara^his 18th July 2024. /e .*? i1 . 4 N M.B. Moaze p ; ® S::'' ’> I / 4 Judge \V ' A/ Court: JOdgemeint delivered in the presence of Ms. Florence Mbamba